Opinion
No. CV 18-02365-PHX-RCC (LAB)
03-13-2019
Rene Ray Starks, Petitioner, v. Charles L. Ryan; et al., Respondents.
Report and Recommendation
Pending before the court is the petitioner's motion, filed on February 7, 2019, to dismiss the petition for writ of habeas corpus. (Doc. 19)
Previously, on July 27, 2018, the petitioner, Rene Ray Starks, filed in this court a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1) The respondents filed a limited answer on November 8, 2018 in which they argue Starks' claims are untimely and procedurally defaulted. (Doc. 11) On February 7, 2019, Starks filed the pending Motion for Voluntary Dismissal. (Doc. 19) He explains he "currently [has] a special action pending in the State appellate court," and he "wish[es] to preserve [his] habeas corpus option in order to include any decision by the State Courts." (Doc. 19) Clearly, Starks seeks a dismissal without prejudice.
The respondents filed a response opposing the motion in part. (Doc. 20) They argue the action should be dismissed with prejudice. Id. It appears to the court that Starks' motion proceeds pursuant to Fed.R.Civ.P. 41(a)(2).
If the opposing party has filed an answer and if the parties appearing do not stipulate to dismissal, a plaintiff seeking dismissal must apply for leave of court. Fed.R.Civ.P. 41(a). The Rule provides that "an action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper." Fed.R.Civ.P. 41(a)(2). "Unless the order states otherwise, a dismissal under this paragraph (2) is without prejudice." Id.
"A district court should grant a motion for voluntary dismissal under Rule 41(a)(2) unless a defendant can show that it will suffer some plain legal prejudice as a result." Smith v. Lenches, 263 F.3d 972, 975 (9 Cir. 2001). "[L]egal prejudice means prejudice to some legal interest, some legal claim, some legal argument." Id. at 976 (punctuation modified) "Uncertainty because a dispute remains unresolved or because the threat of future litigation causes uncertainty does not result in plain legal prejudice." Id. "Also, plain legal prejudice does not result merely because the defendant will be inconvenienced by having to defend in another forum or where a plaintiff would gain a tactical advantage by that dismissal." Id.
In their response, the respondents argue that the petition should be dismissed with prejudice. (Doc. 20) They maintain that Starks' claims are untimely and "Starks' successive proceedings in state court - including his most recent filings - do not change this result. . . ." (Doc. 20, p. 2) They do not, however, explain why all this means that the action should be dismissed with prejudice.
Assuming they are correct and Starks' pending special action does not rescue his untimely pending claims, the respondents fail to explain how they will suffer legal prejudice if the court dismisses the action without prejudice. Starks could, of course, refile those claims later, but, as the respondents' assert, they would still be untimely. Nothing prevents the respondents from raising this argument again when they file their answer. The respondents would have to expend resources preparing a second answer and resolution of the claims would be delayed, but neither constitutes legal prejudice. See Smith v. Lenches, 263 F.3d 972, 976 (9 Cir. 2001).
The court notes that when ruling on a motion to dismiss, it "may consider whether the plaintiff is requesting a voluntary dismissal only to avoid a near-certain adverse ruling." Egan v. Singer, 2014 WL 4230879, at *2 (D. Haw. 2014). That, however, is not the situation here. The respondents' arguments are, as yet, unadjudicated. The court has not indicated how it will rule. Accordingly, it cannot be said that an adverse ruling on the pending claims is a "near-certain." See, e.g., Terrovona v. Kincheloe, 852 F.2d 424, 429 (9 Cir. 1988) ("[S]ince the magistrate had already issued his report and recommendation when the motion was filed, the district court's refusal to use its discretion to dismiss the petition under Fed.R.Civ.P. 41(a)(2) is reasonable.").
RECOMMENDATION
The Magistrate Judge recommends that the District Court, after its independent review of the record, enter an order Granting the petitioner's motion to dismiss his petition for writ of habeas corpus without prejudice. (Doc. 19)
Pursuant to 28 U.S.C. § 636(b), any party may serve and file written objections within 14 days of being served with a copy of this report and recommendation. If objections are not timely filed, they may be deemed waived. The Local Rules permit a response to an objection. They do not permit a reply to a response.
DATED this 13 day of March, 2019.
/s/_________
Leslie A. Bowman
United States Magistrate Judge